The case required the court to interpret language in the Dodd-Frank law that provides a shield against retaliation for whistle-blowers who disclose violations of securities laws. To decide what kinds of disclosures qualify, the court had to explore the relationship between Dodd-Frank, enacted in 2010, and the Sarbanes-Oxley Act from eight years earlier; both offer whistle-blower protection that is similar but not identical.
.. None felt the obligation to defend or even explain the use of legislative history. There was no “tried and true circumlocution,” as Justice Samuel A. Alito Jr., in a tribute to Justice Scalia, put it in describing the usual effort by justices and lawyers alike to avoid Justice Scalia’s wrath by including such apologia as “For those who find legislative history helpful, I note ….” This time, the majority used legislative history because it was there to be used: It was useful.
.. The vote in the Digital Realty case was unanimous as to the outcome. But Justices Alito, Clarence Thomas and Neil M. Gorsuch withheld their signatures from Justice Ginsburg’s full opinion. Their objection was to the citation of the Senate report.
.. Before his death, the authors write, “it was common to see opinions that placed all discussion of legislative history in a final, separate part so that Justice Scalia could join the entire opinion except for that part.”.. In last month’s case, Justice Thomas’s separate opinion in turn provoked Justice Sotomayor, joined by Justice Breyer, to issue an opinion underscoring their agreement with Justice Ginsburg’s use of legislative history. Their concurring opinion reads like a declaration of independence in a post-Scalia world. “I write separately only to note my disagreement with the suggestion in my colleague’s concurrence that a Senate Report is not an appropriate source for this court to consider when interpreting a statute,” Justice Sotomayor wrote.. Legislative history is of course not the law, but that does not mean it cannot aid us in our understanding of a law.. I do not think it wise for judges to close their eyes to reliable legislative history — and the realities of how members of Congress create and enact laws — when it is available... During the Scalia era, useful clues to legislative meaning were studiously ignored by lawyers and judges alike, even though very few lower-court judges were ever as rigid as Justice Scalia in their approach to statutory interpretation... Judge Posner and Professor Gluck interviewed 42 federal appellate judges and found none who flatly refused to use legislative history — and a number who spoke, anonymously, with surprising disdain toward the Supreme Court’s rule-bound approach to interpreting statutes... With a handful of exceptions, most notably his 2008 majority opinion that established a right under the Second Amendment to keep a handgun at home for self-defense, Justice Scalia’s 30-year Supreme Court tenure left surprisingly little imprint on the law in terms of majority opinions that bear his name.